Thierno Diallo v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 12, 2020
• Docket: 19-71673
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

THIERNO SADOU DIALLO, AKA No. 19-71673 Thiemo Sadou Diallo, Agency No. A213-080-720 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted May 6, 2020**

Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.

Thierno Sadou Diallo, a native and citizen of Guinea, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision denying his application for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the

agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir.

2014). We grant in part and deny in part the petition for review, and we remand.

In determining that Diallo did not suffer past persecution, it appears the

agency failed to consider that Diallo was directly threatened by the police and went

into hiding for four years as a result. See Sumolang v. Holder, 723 F.3d 1080,

1084 (9th Cir. 2013) (remand is appropriate where the BIA fails to consider

evidence that is directly relevant to past persecution); see also Mendoza-Pablo v.

Holder, 667 F.3d 1308, 1314 (9th Cir. 2012) (recognizing that being forced to flee

home in face of immediate threat of violence or death may constitute persecution,

where persecutor’s actions are motivated by a protected ground); Khup v. Ashcroft,

376 F.3d 898, 903-04 (9th Cir. 2004) (holding that threats combined with the

murder of a fellow preacher constituted past persecution). The record also includes

evidence that government actors engaged in acts of violence against opposition

demonstrators at the time Diallo was threatened. See Duran-Rodriguez v. Barr,

918 F.3d 1025, 1028 (9th Cir. 2019) (“We generally look at all of the surrounding

circumstances to determine whether the threats are actually credible and rise to the

level of persecution.”). Because it appears the agency failed to consider all

relevant record evidence in finding that Diallo’s past harm did not rise to the level

of persecution, we grant the petition for review as to Diallo’s asylum and

2 19-71673 withholding of removal claims and we remand to the agency for further

proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-

18 (2002) (per curiam).

Substantial evidence supports the agency’s denial of CAT relief because

Diallo failed to show it is more likely than not he will be tortured by or with the

consent or acquiescence of the government if returned to Guinea. See Aden v.

Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

Diallo’s request for judicial notice, set forth in the opening brief, is denied.

The government must bear the costs for this petition for review.

PETITION FOR REVIEW GRANTED in part; DENIED in part;

REMANDED.

3 19-71673